Both of these are reasonable efforts to safeguard the health of women. The Court, in a 5-3 vote, has now ruled them unconstitutional. Justice Stephen Breyer's majority opinion claims that the two measures improperly impose an "undue burden" on women seeking abortion, a standard for judging abortion-related laws that the Court had previously invented and applied in its 1992 Planned Parenthood v. Casey decision.
|Dissenting Justice Sam Alito|
Justice Thomas also offered a separate dissent. While stressing that he remains "fundamentally opposed to the Court's abortion jurisprudence," Thomas notes that "even taking Casey [and its "undue burden" criterion] as the baseline ... the majority [in yesterday's Whole Woman's Health decision] radically rewrites the undue-burden test." The Court, he explains, applies precepts that "are nowhere to be found in Casey or its successors" in order to strike down Texas's provisions. Thomas concludes, quoting the late Justice Antonin Scalia, that the decision "exemplifies the Court's troubling tendency 'to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.'"
The fundamental problem is that, beginning with Roe v. Wade in 1973, the Court has been in the business of creating abortion policy (specifically, a policy of abortion-on-demand) and imposing it on the nation—even though there is no constitutional basis for such action. Whole Woman's Health v. Hellerstedt is a clear step in the wrong direction.
Yesterday's decision underscores the necessity of having Supreme Court justices who apply the Constitution as it actually is. Only then will the Court respect the right of the American people, through their elected representatives, to enact laws that protect women and unborn children and that hold the abortion industry accountable.